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ELCDismissed· [2016] KEELC 872 (KLR)

Petro Oil Kenya Ltd v Gladys Ndira Kiraithe [2016] KEELC 872 (KLR)

Environment and Land Court
25 May 2016
1,347 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to strike out a land dispute claim and refused to undo orders won by default, sending both sides back to fight it out at trial.

What this practically means

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Executive summary

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The Defendant, Gladys Ndira Kirathe, filed a notice of motion dated 1st December 2015 seeking to vacate orders of 29th January 2015 obtained by the Plaintiff, Petro Oil Kenya Ltd, to strike out the plaint dated 26th June 2013, and to have judgment entered in terms of her counterclaim dated 19th November 2015. The Plaintiff opposed through grounds of opposition and filed its own notice of motion dated 19th January 2016 seeking stay of proceedings and setting aside of orders of 2nd November 2015, which had allowed amendment of the defence and introduction of the counterclaim exparte before the Deputy Registrar. The court found that the Plaintiff had been served with the amendment application but filed no replying papers as required by Order 51 Rule 14 of the Civil Procedure Rules, so the application was properly heard exparte; the Deputy Registrar had jurisdiction over amendments under Order 49 Rule 7(1)(b)(vi). The Plaintiff's counsel's alleged sickness did not justify setting the orders aside. However, the court declined to strike out the plaint, holding it disclosed triable issues despite the supporting affidavit remaining largely uncontested, and declined to enter judgment on the counterclaim since no defence to it had yet been filed. Both applications were dismissed with each party bearing their own costs. The Plaintiff was granted 15 days to file a reply and defence to the counterclaim, and both parties were directed to comply with Order 11 within 30 days.

Key legal issues

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01

Whether the exparte orders of 2nd November 2015 were procedurally obtained

Holding

They were procedurally obtained because the Plaintiff failed to file any response to the notice of motion dated 14th August 2015 as required by Order 51 Rule 14, and the application was properly heard exparte before the Deputy Registrar

Reasoning

Order 51 Rule 14 requires a respondent wishing to oppose an application to file a preliminary objection, replying affidavit and/or grounds of opposition not less than three clear days before the hearing. The Plaintiff, though granted time and though served, filed nothing in opposition. The rule provides that in default the application may be heard exparte. The Deputy Registrar had jurisdiction over amendment applications under Order 49 Rule 7(1)(b)(vi), so moving the Deputy Registrar on 2nd November 2015 was proper.

p. 2
02

Whether the orders of 2nd November 2015 should be set aside on grounds of the Plaintiff's counsel's alleged sickness

Holding

The alleged sickness of the Plaintiff's counsel does not suffice to have the exparte orders set aside, following the Surgippharm authority cited by the Defendant

Reasoning

The court adopted the Defendant's submissions that counsel's alleged sickness was not a reasonable ground for setting aside procedurally obtained orders, referring to Republic v Anita Contempit Agency & 2 Others Ex Parte Surgippharm Limited [2014] eKLR, which the court cited with approval in concurrence with the Defendant's counsel.

p. 3
03

Whether the plaint should be struck out for failing to disclose a reasonable cause of action

Holding

The plaint discloses triable issues and should not be struck out; judgment on the counterclaim was likewise refused

Reasoning

Although the supporting affidavit of Gladys Ndira Kiraithe remained largely uncontested since the Plaintiff filed only grounds of opposition, the court held that triable issues existed on the plaint. The absence of a defence to the counterclaim was excused on the basis that the Plaintiff was awaiting determination of the application, and the Plaintiff was granted leave to file its defence to the counterclaim within 15 days rather than having judgment entered against it.

Legal principles established

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  • Where a respondent fails to file any of the documents permitted under Order 51 Rule 14 within the prescribed time, an application may be heard exparte
  • The Deputy Registrar has jurisdiction to entertain applications for amendment under Order 49 Rule 7(1)(b)(vi) of the Civil Procedure Rules
  • A plaint that discloses triable issues should not be struck out even where the facts in support of the striking-out application are uncontested

Court orders

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  1. 1.The notices of motion dated 1st December 2015 and 19th January 2016 are dismissed with each party bearing their own costs
  2. 2.The Plaintiff is granted leave to file and serve a reply and defence to the amended statement of defence and counterclaim dated 19th November 2015 within 15 days
  3. 3.Both parties to comply with Order 11 of the Civil Procedure Rules within the next 30 days

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 14
  • Civil Procedure RulesOrder 8
  • Civil Procedure RulesOrder 49 Rule 7(1)(b)(vi)
  • Civil Procedure RulesOrder 11

Cases cited (1)

  • Republic -V- Anita- Contempit Agency & 2 Others Ex Parte Surgippharm Limited
    [2014] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Petro Oil Kenya Ltd v Gladys Ndira Kiraithe [2016] KEELC 872 (KLR)", Case Analysis (2016). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/872/eng@2016-05-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.